(121 App. Div. 632.)

#### COLE v. GORI.

(Supreme Court, Appellate Division, First Department.

October 25, 1907.)

Abbest—In Civil Actions—Affidavit.

The affidavit of plaintiff for arrest of defendant in an action for alienation of the affections of plaintiff’s wife, the complaint alleging that, without the knowledge or procurement of plaintiff, defendant at various times debauched her and destroyed her affections for plaintiff, is insufficient, • though alleging that all the facts of the complaint are true to affiant’s knowledge; but, there being a fair presumption that the fact of defendant’s intercourse could not have been within plaintiff’s personal knowledge, the affidavit should set forth how and in what manner- knowledge came to him, or the facts from which he deduced his conclusion.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Arrest, §§ 56-63.]

Appeal from Special Term, New York County.

Action by John H. W. Cole against Frederick Gori. From an order denying his motion to set aside an order of arrest, defendant appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and HOUGHTON, JJ.

Roy M. Hardy, for appellant.

William D. McNulty, for respondent.

HOUGHTON, J.

The action is to recover damages for the alienation of the affections of plaintiff’s wife. The complaint by positive allegation alleges that, without the knowledge or procurement of plaintiff, the defendant, contriving and intending to injure the plaintiff and alienate the affections of his wife, at various times and places debauched her and destroyed her affection for plaintiff, to his great distress and damage. The affidavit which was presented with the complaint upon the application for the order of arrest alleges that all of the allegations of the complaint are true to deponent’s knowledge. The motion to set aside the order of arrest was denied, and the defendant appeals.

The principal point urged by the defendant is that the complaint itself states that the acts charged against defendant were committed without plaintiff’s knowledge. If it be assumed that the averment of lack of knowledge and procurement is a mere formal and technical allegation, and hence not to be construed as a broad assertion that plaintiff had no knowledge of the commission by the defendant of the acts complained of, still we think the proof upon which the order of arrest was granted was insufficient. It can hardly be assumed that the plaintiff was present at the defilement of his wife. If he was not, he learned the facts from confession or hearsay, or from deduction from facts and circumstances. His affidavit should have set forth how and in what manner knowledge came to him, or the facts from which he deduced his conclusion, so that the justice to whom the application was made might determine the propriety of granting an order of arrest. It has been held that the mere averment in an affidavit of facts as upon personal knowledge is not sufficient, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers. Hoorman v. Climax *307Cycle Co., 9 App. Div. 579, 41 N. Y. Supp. 710. This is particularly true where a fair presumption arises that the fact positively averred could not have been within the personal knowledge of the affiant. Of course, it is possible that the plaintiff may have discovered the defendant and his wife in the perpetration of the wrong, and thus had personal knowledge. If such was the fact, we think he should have so stated. The charge of continued and repeated defilement tends to negative the idea of discovery in such a manner. The affidavit, in our opinion, was insufficient, and the motion to vacate should have been granted.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion to vacate the order of arrest granted, with $10 costs. All concur.